THE SITUATION OF LOCAL HUMANS RIGHTS ORGANIZATIONS
A. General Considerations
1. The continuing policy of the Inter-American Commission on Human Rights has been to encourage the work of the national human rights commissions to enable them to help promote observance in their particular countries of the rights inherent in human dignity. In addition, whenever the Commission has examined the situation of human rights in a particular State, it has generally received invaluable cooperation form these entities through their evidence and information which, taken together with the information provided by the Government and other sources, have enabled it the better to understand the facts about human rights in the country.
2. In Nicaragua, the cooperation given by the human rights agencies was significant in facilitating the Commission’s work. During its on-site observation in 1978 under the Government of General Somoza, the Permanent Commission on Human Rights in Nicaragua, (CPDH) gave the Commission notable assistance, which certainly helped it to prepare its report promptly and correctly. It is a report that reflects the drama affecting Nicaragua at that time.
During its 1980 observation, to which the present report refers, the permanent Commission on Human Rights in Nicaragua again contacted the IACHR, and provided it with information and testimony; but this time, the IACHR also received assistance and cooperation from the National Commission for the Promotion and Protection of Human Rights, an official agency which served as liaison and coordination for the Commission’s activities during its stay in Nicaragua.
3. The praiseworthy work these entities have done explains why one of the IACHR’s preliminary recommendations to the Government of national Reconstruction was “to guarantee complete autonomy and freedom to carry on their activities to the Commissions dedicated to the defense and promotion of human rights in Nicaragua, whether official or private.” It is thus that the IACHR has noted with satisfaction the statement by the Government of Nicaragua in its reply to the preliminary report, to the effect that it was pleased to reiterate its firm commitment to maintaining the autonomy of both the Permanent Commission and the National Commission.
4. Alongside these two entities, one governmental and the other private, this chapter cannot fail to mention the difficult work that has been done during this transition and emergency stage in Nicaragua by the committees or associations of families of detainees. Of these, the most important is the Asociación de Familiares de Internos de Nicaragua.
B. The Nicaraguan Permanent Commission of Human Rights
1. The Permanent Commission on Human Rights in Nicaragua (CPDH) was founded on April 20, 1977 in Managua. According to its Statute, it is a private, non-governmental organization, of a civilian and humanitarian type, created for the purpose of promoting awareness of and respect for the natural rights of all Nicaraguans as upheld in domestic law and international conventions signed by the Government.
The CPDH is directed by a fifteen member executive committee. The President is Dr. Ricardo Paíz Castillo, and the National Coordinator is Dr. José Esteban González Rappaccioli. The Committee also has a national advisory council, and departmental and local committees.
2. During its two years of existence under the previous government, the CPDH was renewed for its effective work during one of the most dramatic periods in the history of Nicaragua. The work it did during the government of general Somoza included providing legal assistance to the authorities to prevent such violations; located and defended persons to a number of international humanitarian organizations, including the IACHR, where specific cases of violations of human rights were denounced.
3. During the IACHR’s visit to Nicaragua in October 1980, the Commission again met with the CPDH, which told it that “…endorsing the declarations of our country’s leaders, the new laws guaranteeing human rights and the recent ratification’s by the Government of major international conventions on the matter, it has renewed its efforts to cooperate effectively with the authorities.” The leaders of the CPDH added that they were continuing their work, jealously guarding their impartiality, and that Was a result of the new political realities of Nicaragua, they had opened their doors wide and has been visited by hundreds of people who were desperately seeking guidance and support to solve the cases that had naturally occurred as a result of the violent fall of the Government.
4. In its interview with the Commission, the CPDH presented testimony, information and some specific denunciations, particularly regarding the status of prisoners, and disappeared persons or accused persons who had not been located, as well as on certain abuses of authority vis-à-vis detainees. Whenever these denunciations met the requirements of the statute and Regulations of the IACHR, the Commission began the relevant procedure, reporting the denunciations to the Government.
Some of the members of the executive of the CPDH told the Commission that although no legal action had yet been taken against them, they were continually being subjected to insults and personal attacks by some authorities, and by the mass communications media controlled by the Government or by the FSLN.
A number of Governmental authorities with whom the commission had the opportunity to discuss the matter said that while the CPDH had done meritorious work under the previous regime, in their opinion, its purposes at the moment were mainly of a political nature, rather than humanitarian.
5. On February 11, 1981, the Commission received the following denunciation concerning the Permanent Commission on Human Rights in Nicaragua.
At 9:00 a.m. today, Commander Enrique Schmidt, Police Chief of Managua, accompanied by other soldiers, broke down the door and entered and occupied the offices of the Permanent Commission on Human Rights in Nicaragua, and went through the files.
At. 10:30 a.m. today, he Minister of justice, Dr. Ernesto Castillo, came to the building and left in the offices a decree dated yesterday, which says that since the Permanent Commission on Human Rights in Nicaragua is conducting activities outside the law, all its activities are suspended until the authorities verify the legitimacy of its existence and activities. Ir. Ordered that all the files pass into the possession of the Government; that the Director General of the Communications media shall apply to the Commission Decree No. 511 on censorship of information; that members of the Commission are warned that contravention of the decisions would entail application of Article 3 of Decree no. 511 and Article 4 of Decree No. 488.
Because this was a serious denunciation, the Government was immediately informed of it in a telegram. The following day, the Ambassador Permanent Representative of Nicaragua to the OAS delivered to the Executive Secretary of the Commission a communication from the Ministry of Justice, which stated as follows:
The Ministry of Justice, for purpose of information and publication, hereby transcribes the following decision: Managua, at 5:00 p.m. on February 10, 1981. The ministry of Justice, in exercise of the authority granted it under the law, and in view of the fact that the so-called Permanent Commission on Human Rights (CPDH) is conducting activities in violation of provisions establishing the essential pre-requisites for juridical persons to be able to conduct their activities as our laws permit, resolves:
1. To order that no activity of the so-called Permanent Commission on Human Rights be conducted until such time as the relevant authorities are presented with documents giving evidence of its constitution and authority to conduct the activities indicated in our laws for these cases.
2. To order that the files and documents of the aforementioned Commission pass to the custody of this Ministry, until such time as the provisions of paragraph one above are complied with.
3. To request the Office of the Director General of the Communications Media to comply with the provisions established for such cases in decree No. 511 of September 10, 1980, until the legal status of the so-called Permanent Commission on Human Rights (CPDH) is definitively resolved.
4. To warm the members of the so-called Permanent Commission on Human Rights that if they conduct activities that do not fall within the framework of the law, action will be taken in conformity with the provisions of Article 3 of Decree No. 511 and Article 4 of Decree No. 488 of August 9, 1980.
Ministry of Justice (SIGNED) Ernesto Castillo Martínez, Minister.
“LIBERTY OR DEATH.” Seal.
Subsequently, on February 18, the Ambassador Permanent Representative of Nicaragua to the OAS wrote as follows to the Executive Secretary of the Commission in connection with the status of the CPDH:
Dear Dr. Vargas Carreño:
On the instructions of my Ministry of Foreign Affairs, allow me to inform you and through you, the Honorable Members of the Commission, of the latest official communications issued by the Ministry of Justice regarding the status of the Permanent Commission on Human Rights (CPDH)
On Saturday, February 14, 1981, at 10:00 a.m. (local Nicaragua time), the Ministry of Justice went to hand back the CPDH’s building and property, so that it could continue to operate to promote and safeguard human rights, which ought, in theory, to be its work.
At the request of the Ministry of Justice, Dr. Leonte Herdocia served in a personal capacity as intermediary between the Ministry of Justice and the CPDH during the delivery; the CPDH was represented by its President, Dr. Ricardo Paíz Castillo.
It had earlier been agreed that the handing-over would be done under police protection, and that the only people present would be a committee set up for the purpose; the members of the committee would be Dr. Ricardo Paíz Castillo (President), Dr. Eduardo Rivas Gasteazoro, and Mr. Javier Zavala for the CPDH, and for the Ministry of Justice, the Minister of Justice himself, Dr. Ernesto Castillo M.
These gentlemen arrived one hour later than the time agreed on, and were accompanied, in an importunate manner, by other people’s, thus breaking the agreement that the Minister of Justice, Dr. Ernesto Castillo M., would hand over the building to the committee that the President of the CPDH, Professor Paíz Castillo himself had appointed.
Given the refusal by the appointed committee and its members who had appeared without warning to take over the building, the Minister of Justice stated that he was taking no responsibility, but not before reaffirming that the CPDH could continue to operate normally.
We wish to reiterate once again that observation, protection and respect for human rights and its institutions is a fundamental priority of our Government. This is in complete accord with the goodwill expressed by the Ministry of Justice.
With any respects to yourself and the Honorable Members of the Commission,
Although the Commission is gratified that the building and property of the CPDH have been returned, it cannot pass over its deep concern over the measures initially taken by the ministry of Justice, which conspire against the stated intentions of the Government to respect human rights.
6. Despite the Government’s promise that the CPDH “may continue to function normally,” the Commission was informed that on the afternoon of February 19, 1981, Mr. José Esteban González, National Coordinator for the CPDH, was detained by the State Security. He had just returned from Europe where he had talked to His Holiness Pope John Paul II and a number of European political leaders. The Commission could not fail to make known its serious concern over this detention, which in addition to affecting Mr. González’s human rights, posed an unjustifiable obstacle to the normal functioning of an entity such as the CPDH which is dedicated to the protection of human rights. The Commission said as much to the Government of Nicaragua when it transmitted to it the compliant received in connection with this case.
On February 23, 1981, in a letter to the Executive Secretary of the Commission from the Ambassador, Permanent Representative to the OAS, the Government of Nicaragua stated as follows:
Allow me to inform you, and through you, the Honorable Members of the Inter-American Commission on Human Rights, of the official reports that we have received to date from my Government concerning the detention of Mr. José Esteban González.
The First Criminal District Judge of Managua issued a warrant for the arrest of Mr. Esteban González on February 19, 1981 at 8:20 a.m. at the request of the Criminal Public Prosecutor of the Department of Managua, in conformity with paragraph 1, 3 and 4 of Article 4 (amended) of Decree No. 5.
Mr. González appeared to make this statement on Saturday February 21, i.e., within the deadline set by our criminal law.
Decree No. 5 on which the Criminal Prosecutor’s request was based refers to the Law on the Maintenance of Public Order and Security, which states that the dissemination, either orally or in writing, of statements, proclamations or manifestos intended to damage national security or integrity, public safety or the national economy, protection of health, morals, or individual dignity, or the reputation and rights of others, is a crime.
The Criminal Prosecutor formally undertook to p resent the relevant evidence corroborating the Commission by the accused of the serious crimes listed in the legal provisions he invoked which were the basis for the case brought against Mr. José Esteban González.
Subsequently, at its 52nd session, the IACHR reiterated its concern over this case, as follows:
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, AT THE FIRST MEETING OF ITS FIFTY-SECOND SESSION, UNANIMOUSLY DECIDED TO ADDRESS YOUR EXCELLENCY TO REITERATE ITS CONCERN OVER THE DETENTION AND THE ACTION BEING BROUGHT AGAINST THE NATIONAL COORDINATOR OF THE PERMANENT COMMISSION ON HUMAN RIGHTS IN NICARAGUA, MR. JOSE ESTEBAN GONZALEZ. WE SHOULD BE GRATEFUL IF YOU WOULD INFORM US IN DETAIL PRIOR TO MARCH FOURTH NEXT OF THE SPECIFIC ACTIONS ON WHICH THE CHARGES BROUGHT AGAINST HIM ARE BASED.
In reply to this cable, the IACHR received a communication from the Government inviting it to go to Nicaragua to be present at the trial of Mr. González.
A few days latter, on March 3, 1981, the Government of Nicaragua informed the Commission that Mr. González had been declared not guilty, and was totally free. The telegram that the Commission reads as follows:
MESSRS: TOM FARER AND EDMUNDO VARGAS CARREÑO
PRESIDENT AND EXECUTIVE SECRETARY, IACHR
I AM HONORED TO REPORT THE FOLLOWING:
THAT IN A PLEADING PRESENTED AT 8:50 A.M. TODAY BEFORE THE JUDGE OF THE TENTH CRIMINAL DISTRICT OF MANAGUA, MR. JOSE ESTEBAN GONZALEZ STATED AS FOLLOWS:
I WISH NOW TO REAFFIRM, AS I ALWAYS HAVE, MY TOTAL IDENTIFICATION WITH THE FUNDAMENTAL PRINCIPLES OF THIS REVOLUTION, AND THAT I SHALL CONTINUE TO STRIVE FOR ITS IMPROVEMENT AND TOTAL SUCCESS. HAVING SAID THIS, I SHOULD LIKE TO MAKE THE FOLLOWING CLARIFICATIONS:
1) I HAVE NEVER ACCUSED THE GOVERNMENT OF NATIONAL RECONSTRUCTION, NOR DO I DO SO NOW, EITHER IN A PERSONAL CAPACITY OR AS COORDINATOR OF THE COMMISSION ON HUMAN RIGHTS, OF SANCTIONING OR TOLERATING THE USE OF TORTURE. HOWEVER, WE HAVE IN OUR FILES A FEW ISOLATED CASES IN WHICH MEMBERS OF THE LOCAL POLICE HERE ACCUSED OF ABUSES AGAINST PRISONERS.
ANY INDICATION TO THE CONTRARY IS AN INCORRECT INTERPRETATION OF MY PUBLIC STATEMENT.
2) I HAVE AGREED WITH THE GOVERNMENT THAT IN THE FIRST DAYS OF VICTORY, PARTICULARLY BETWEEN THE BEGINNING OF JULY AND THE FIRST DAYS OF AUGUST NINETEEN SEVENTY-NINE, THERE WERE CASES OF EXECUTION, CARRIED OUT INDIVIDUALLY IN THE FIELD, AND THAT THERE WERE DISAPPEARANCES DURING THIS PERIOD. OF THE TOTAL ESTIMATED NUMBER OF DISAPPEARANCES, THE MAJORITY HAPPENED DURING THIS INITIAL PERIOD, WHEN THE PRESENT GOVERNMENT HAD NOT BEEN ABLE TO CONSOLIDATE ITS CONTROL OVER THE COUNTRY.
3) MY STATEMENTS AS TO THE NUMBER AND TYPE OF PRISONERS HAVE ALSO BEEN POORLY INTERPRETED. MORE EXACTLY, MY STATEMENT WAS THAT THE NUMBER OF PRISONERS MAY HAVE REACHED A MAXIMUM OF EIGHT THOUSAND TOWARD THE END OF DECEMBER NINETEEN SEVENTY-NINE. HOWEVER, THIS IS AN ESTIMATE ON MY PART, BASED ON THE NUMBER OF PRISONERS THAT THE GOVERNMENT AGREED IT HAD DETAINED, PLUS A NUMBER OF DISAPPEARANCES THAT WERE ESTIMATED BY ME, AND A CALCULATION OF THE NUMBER CURRENTLY IN DETENTION IN VARIOUS LOCAL DETENTION CENTERS.
THE DECLARATIONS TO WHICH I REFER SHOULD NEVER BE INTERPRETED AS A DEFENSE OF THE SOMOCIST PRISONERS WHO COMMITTED ATROCITIES AGAINST THE NICARAGUAN PEOPLE. OF THE ORIGINAL FIGURE OF APPROXIMATELY SEVEN THOUSAND FIVE HUNDRED PRISONER’S ACCUSED OF SOMOCISTA ACTIVITIES, I PERSONALLY ESTIMATE THAT AS OF THE DATE OF THIS PRESENT STATEMENT, SOME FOUR THOUSAND, MORE OR LESS, STILL REMAIN IMPRISONED.
I SHOULD LIKE TO TAKE THIS OPPORTUNITY RESPECTFULLY TO RENEW MY REQUEST FOR THE COOPERATION OF THE REVOLUTIONARY GOVERNMENT AND OF THE NATIONAL COMMISSION FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS, SO THAT WE CAN TOGETHER ACHIEVE THE OBJECTIVES OF THE REVOLUTION AND GUARANTEE ALL NICARAGUANS THEIR FUNDAMENTAL RIGHTS. RESPECTED MY RIGHT TO HAVE A PUBLIC HEARING BEFORE A CIVIL COURT AND TO SELECT A DEFENSE ATTORNEY OF MY OWN CHOOSING, AND THAT IT ACCEPTED THE PRESENCE OF VOLUNTEER LEGAL OBSERVERS DURING THE PROCEEDINGS.
AS A RESULT OF THIS PLEADING, THE CRIMINAL PROSECUTOR TOOK NOTE OF THE RATIFICATION’S AND HIS ACKNOWLEDGEMENT OF THE ERRORS THAT HAD GIVEN RISE TO THE ACCUSATION, AND ASKED THE DISTRICT JUDGE TO TAKE MR. GONZALEZ’S RECTIFICATION VERY MUCH INTO ACCOUNT AND RULE ACCORDING TO THE LAW, DISPLAYING A GENEROSITY IN ACCORDANCE WITH THE PRINCIPLES OF THE REVOLUTION.
IN HIS RULING OF 6:35 P.M. ON THIS DAY, PREAMBULAR PARAGRAPH 111, THE DISTRICT CRIMINAL JUDGE STATED THAT SINCE MR. GONZALEZ HAD FILED A PLEADING ACKNOWLEDGING HIS ERRORS AND THE POSITIVE ACTIVITIES OF OUR REVOLUTIONARY GOVERNMENT. ON THE BASIS OF OUR SPIRIT OF BROTHERHOOD, AND NATIONAL UNITY AND IN THE OVERRIDING DESIRE TO FORM A SINGLE NICARAGUAN FAMILY, HE FINDS: THAT THE ACCUSED JOSE ESTEBAN GONZALEZ RAPPACCIOLI BE ACQUITTED OF THE CRIMES OF WHICH HE WAS ACCUSED.
MR. JOSE ESTEBAN GONZALEZ IS ENJOYING COMPLETE FREEDOM.
YOURS MOST SINCERELY
FRANCISCO FIALLOS NAVARRO
MINISTER OF FOREIGN AFFAIRS BY LAW
7. In the Commission’s view, even admitting that the Executive Committee of the CPDH contains members who are independents or militants of various opposition parties. It cannot be denied that the CPDH continues to play an important role in the protection of human rights, and that a good number of people who consider that their human rights have been ignored by the Government are constantly coming to it. For these reasons, the Commission reiterates its recommendation that the CPDH be guaranteed its autonomy and allowed to carry on its work, and that the freedom and safety of its members and leaders be respected.
C. The National Commission for the Promotion and Protection of Human Rights
1. The National Commission for the Promotion and Protection of Human Rights was created by the Junta of the Government of National Reconstruction on June 3, 1980, in Decree No. 438 published in the Gaceta, the Official Gazette, No. 138 of Thursday, June 19, 1980. According to the Decree, the National Commission is an autonomous, impartial organ within the framework of the Fundamental Statute and other laws.
According to the preamble to the Decree, it was created as a result of the policy of the Government of National Reconstruction to protect and promote human rights. One of the Government’s fundamental objectives is to have the Nicaraguan people enjoy to the full their civil, political, economic, social and cultural rights and their fundamental freedoms. This Commission was also in response to Resolutions 23 (XXXIV) and 24 (XXXV) of the United Nations Commission on Human Rights. Of march 8, 1978, and March 14, 1979, and to Resolution 33/46 of the General Assembly of December 14, 1978, all of which set forth criteria for the functioning of national institutions for the promotion and protection of human rights, and gave directives as to their structure.
2. According to Article 2, its structure should reflect the broadest possible participation of the population, including representatives of the trade-unions, religious groups, professionals, women, young people, journalists, political groups, students, and university and other people (Art. 2).
The Commission is headed by a “National Commissioner for Human Rights and Humanitarian Affairs” directly appointed by the executive Branch. He must be a qualified citizen with expertise in the subject (Art. 9). In Decree No. 439 of the same date as the other, Dr. Leonte Herdocia Ortega was appointed as National Commissioner for Human Rights and Humanitarian Affairs.
3. In general, according to the constituent decree, it may be said that the commission has two types of functions, one of promotion, and the other of protection of human rights. The Commission also fulfills the function of advising the Government on these issues.
4. In its function of promotion, the Commission carries out two types of activities: a) publicity, and b) education.
In its work to publicize human rights, the Commission must bring together, compile and circulate information on the subject. And circulate the basic texts on human rights (treaties, conventions, international declarations and domestic legislation), using appropriate impartial press services and mass communications media, with whom the Commission must work in concert.
In its educational work, the Commission must play a major role in carrying out educational program on human rights (Art. 3, paragraph g); not only must it actively promote education of fundamental rights at all levels. And contribute to developing this so that teaching about human rights, is part of the curriculum in all teaching institutions and nonacademic schools (Art. 3 paragraph j). It must also sponsor national regional and local conferences, and promote special courses for professional groups, particularly for law-enforcement personnel, including the military and the police (Art. 3, paragraph j).
The Commission must also cooperate through proper channels with the United Nations and the OAS, the specialized agencies and the inter-governmental organizations to facilitate promotion of human rights, and must also channel information between the United Nations system and the non-governmental organizations in the area of human rights.
5. As regards the protection of human rights, the Commission must, according to Article 4, paragraph I of Decree No. 438, follow the principle that the State has a fundamental, but not exclusive, responsibility and obligation to protect human rights. As a result, the Commission must receive denunciations and information directly from any source, whether individual or groups (Article 3, paragraph e), and it must have independent fact-finding entities authorized to investigate complaints. These must have the authority to call witnesses and have access to relevant evidence, within the framework of its constitution and its jurisdiction, and in accordance with established legal procedures.
The Commission must also inform the public about methods of imposing observance of their rights under national law, and to provide assistance in the area of protection and realization of these rights.
The Commission must also encourage respect for the rule of law, and to that end, must promote the adoption of measures to guarantee and protect the independence and impartiality of the judiciary, and to guarantee and safeguard the independence of attorneys representing any client or acting in any case.
6. Together with those functions, the National Commission for the Promotion and protection of Human Rights advises the Government on such matters. Thus, the Commission must review and contribute to the process of writing laws to protect human rights and fundamental liberties (Art. 7, paragraph b).
In addition, the Commission must serve the Government of the Republic as an information and consultation agency on human rights (Art. 3), and assist it in preparing the reports required by international instruments on the issue.
7. During its on-site observation, the IACHR was able to look first-hand at the praiseworthy work being done by the National Commission for the Promotion and Protection of Human Rights. Because of its nature as a government organ, its work, rather than being directed toward the protection of human rights of people who allege their rights had been violated, has been to promote and publicize human rights. Of particular note is the impetus this National Commission has given to Nicaragua’s participation in international instruments on human rights.
The IACHR would like to record the invaluable cooperation given to it by the National Commission for the Promotion and Protection of Human Rights.
D. The Nicaraguan Association of Prisoners’ Families
1. The Asociación de Familiares de Internos de Nicaragua (AFIN) (Nicaraguan Association of Prisoners’ Families, is a group that brings together the families of prisoners. Whether or not they have been brought to trial, who are incarcerated in the various prisons of Nicaragua because they belonged to the National Guard or had links to the previous regime. Although this Association cannot, strictly speaking, be considered a human rights agency, it does, by helping prisoners, do work that that is directly related, although on a temporary, passing basis, to the protection of human rights.
2. This association is set up as a single entity at the nation-wide level; however, it has a number of branches for the various prisons or detention centers where the prisoners are held.
Its main function has been to obtain the release of their relatives, and has worked to this end with Nicaraguan’s political and legal authorities, with international organizations and with personalities from other countries, including a number of Heads of State. Through its coordinated work, AFIN has been able to improve the physical, sanitary, mental and nutritional conditions of prisoners.
3. During the Commission’s visit, it interviewed the National Directors of AFIN, and also representatives of the Free Zone and Model Prison branches, who explained the prisoner’s situation and asked the Commission to intervene to improve prison conditions.
In a letter to the Commission, AFIN stated:
“…we are mothers and wives, we are suffering the consequences of not having our family members near to us. We have been deprived of the love and protection that our children need and of the economic assistance we need in out homes. For we are now living in depressed conditions; without work, without home and without personal possessions, because the Revolution took everything away from most of us; we weep over our misfortune, we weep for our children who are those who are suffering from this situation. We are also suffering the consequences of a society that has turned against us, in hatred for us and our family members in ail, which means that we are being alienated from society and not being brought into the production process.”
4. This claim by AFIN is true to some extent, and the Commission could verify this during its visit to Nicaragua. However, in recent months whether because of the high cost of keeping a large number of people in jail; or for humanitarian reasons—the authorities do indeed have humanitarian sentiments—or as the result of the efforts of national and international human rights organizations, the government has released a good number of detainees—but still not enough-who are held to be not dangerous, and where possible, has sought to reintegrate them into society.